15 Jan. '12: Judge holds confession of Palestinian minor admissible, although it was obtained through breach of his rights

Published:

15 Jan 2012

On 9 January 2012, Israeli Military Youth Court judge Major Sharon Rivlin-Ahai held that the confession given to the police by I.D., a 14-year-old Palestinian boy from a-Nabi Saleh, interrogated on suspicion of stone throwing, was admissible. The judge admitted the confession even though the minor had been questioned in breach of his rights under Israel’s Youth Law, whose spirit, according to the Military Appeals Court, applies also in adjudication of Palestinian minors in the military courts.

I.D. was arrested at home in the middle of the night. He was not allowed to rest, eat, or go to the bathroom and, from the morning, was interrogated for more than seven hours. He was interrogated, without his parents present, by three or four interrogators, only one of whom is a trained youth interrogator – although even he is not currently functioning in that capacity and has not undergone retraining following the changes in the Youth Law made in 2008.

I.D.'s interrogation, taken from video footage of the interrogation by the police.

Despite the fact that I.D.’s attorney contacted the interrogators before the interrogation began, I.D. was only allowed to consult with him five and a half hours of interrogation. One of the interrogators read I.D. his rights three times, each time omitting the right to remain silent and emphasizing that he must tell the whole truth.
Under interrogation, I.D. admitted to throwing stones and incriminated two persons from his village in organizing demonstrations and inciting villagers to throw stones.

I.D.’s attorney complained that his client’s confession had been obtained through use of improper means and should not be allowed into evidence. As a result, the court held a trial-within-a-trial, in which the judge ruled that the confession was admissible.

In her decision, Judge Rivlin-Ahai accepted some of the defense’s claims regarding the nature of the interrogation but held, nevertheless, that ruling the confession inadmissible was not justified. Regarding the interrogation in the absence of I.D.'s parents, she held that, as I.D. had given information on many fellow villagers, she accepted the interrogator’s statement that “it is highly likely that, even if the parents had come, he would not have permitted them to be present during the interrogation.”

As for the refusal to allow the minor to meet with his attorney, the judge ruled that, “from the moment that the interrogation began and it became clear that the defendant was providing valuable information on the involvement of many other persons, the decision to prevent the meeting with the attorney for several hours cannot be viewed as patently unreasonable.”

On the decision not to wait for the attorney's arrival to begin the interrogation, although he had notified the interrogators that he was on his way, Judge Rivlin-Ahai said that the interrogators should have waited, but “it is hard to say that the decision not to wait, when the defendant had already been in detention since night-time and was waiting for the interrogation to begin… was so unreasonable and unjust that it critically harmed the fairness of the interrogation.”

With respect to I.D.’s tiredness, the judge contended that video footage of the interrogation indicated that "it was not tiredness of the kind that would prevent a substantive interrogation.”.

In her summary, the judge emphasized that, “each of the circumstances… could, in certain circumstances, each on its own and certainly cumulatively, lead to the conclusion that the fairness of the interrogation was harmed to the core… In the unique concrete circumstances existing here, I did not find this to be the case.”
The only essential flaw that the judge found in the interrogation was that the interrogators did not properly clarify to I.D. that he had the right to remain silent, instead giving him the impression that he was obliged to tell them everything he knew. On this point, the judge stated in her decision:

As noted, the flaw in the defendant's interrogation is serious. On the other hand, I have concluded that this flaw did not have a real effect on the manner in which the defendant gave his confession. Therefore, I believe that the infringement of the defendant’s rights in the specific case did not result in greater than necessary violation of his right to criminal due process, to the extent that would nullify his confession and, as a result, impede revelation of the true facts and advancement of the public interest in combating criminality.

The testimonies of interrogators of the SHAI (Judea and Samaria) Police Department in the trial-within-a-trial indicated that the interrogation of I.D. is the norm in the Department's handling of Palestinian minors. Under cross-examination, the police officers said that Palestinian minors are regularly interrogated without their parents in the room, by interrogators who have not been trained as youth interrogators, and in a manner that breaches Israel’s Youth Law. However, since most files involving minors end in plea bargains, judges generally do not have the opportunity to give their opinion on the conduct of the interrogation and to alter the police’s unlawful practices.

In I.D.’s case, the court had a rare opportunity to provide the minor with real protection and to establish a rule that would protect the rights of all Palestinian minors interrogated by the police. It is highly regrettable that the judge chose to admit the confession into evidence rather than send a clear message to the authorities that the public interest actually lies in the proper protection of the rights of minors.